BERMUDA BRITISH VIRGIN ISLANDS CAYMAN ISLANDS CYPRUS DUBAI HONG KONG LONDON MAURITIUS MOSCOW SÃO PAULO SINGAPORE conyersdill.com March 2011 The Growing Popularity of Cayman Islands Trusts in the Middle East Individuals and companies based in the MENA region did not escape investment losses during the global financial crisis. As a result of recent turmoil, many families in the Middle East that have traditionally maintained proprietary wealth are turning to structures that include trusts to address succession planning and asset protection concerns. Already widely used for corporate purposes, Cayman is emerging as a popular choice for MENA families and corporate groups looking to establish a trust. In addition to being familiar, Cayman offers a politically stable and tax neutral jurisdiction with a well established common law system and sophisticated, modern trust legislation. Cayman trusts are also widely used in the MENA region for Islamic finance transactions and employee benefit schemes. This article examines how Cayman s trust regime may assist families and corporate groups to address certain issues that frequently arise in the MENA region. Inheritance Meaning path in Arabic, Shari a guides all aspects of Muslim life including financial dealings and inheritance. The Shari a law of inheritance, mainly set out in the Koran, comprises an elaborate system of forced heirship rules governing the devolution of property. Unlike in many other parts of the world, assets in the MENA region are in great part held personally rather than through companies. As a result, Shari a generally determines the division of property and sets out the shares to which family members will be entitled and the order of precedence. The effects of Shari a laws of heirship may be altered by the use of a Cayman trust. It is important to recognise that clients in the MENA region typically do not wish to
mitigate all aspects of Shari a when structuring a trust. Indeed, the trust deed often will be drafted so as to ensure that, as far as possible, its terms, particularly those governing the trustee s choice of investments, are Shari a compliant. It is also common to see an Islamic scholar nominated in the trust deed to advise the trustee on matters of Shari a interpretation. However, in many cases a family may determine that its interests will be served by an arrangement that facilitates conservation and management of wealth by appropriate persons and/or distributions of capital and income in shares that accord with varying individual needs. Assets settled into a trust by an individual (known as the settlor ) during his lifetime will remain outside his personal estate upon death and will not fall to be distributed in accordance with Shari a law (save to the extent required by the trust deed). The trust deed contains the terms of the trust, including the terms governing distribution by the trustee of income and capital. Typically, this will confer wide discretion on the trustee. In addition to these terms, the settlor usually will provide guidance in a separate letter of wishes, explaining how he would expect the trustee to exercise its discretionary powers in favour of family and any other beneficiaries or purposes of the trust. Alternatively, the settlor may fix the beneficial interests under the trust in such manner as he considers appropriate, including on the basis that some or all distributions are to be made in shares determined in accordance with Shari a. It is also quite usual to appoint a protector under the trust deed. Generally a confidant of the settlor or a professional person, the protector s role is to ensure that the trustee acts in accordance with the settlor s wishes. By these means, the settlor may determine how he would like to have the trust income and capital distributed rather than relying on Shari a law. Since the trust is expressed to be governed by Cayman law, all questions arising in relation to the trust, including the capacity of the settlor to create the trust, the validity of the transfer of assets to the trustee and the administration of the trust, will be determined exclusively by Cayman law. Any party wishing to challenge the integrity of the trust will have to do so in the Cayman courts applying Cayman law. Further, Cayman law specifically provides that no transfer of property into trust is liable to be set aside on grounds that the laws of a foreign jurisdiction do not recognise trusts, or that the trust was set up to defeat foreign heirship or other property rights. A judgement of a foreign court which is inconsistent with these principles will not be recognised in Cayman. Page 2 of 5
Family Business Succession Recent articles in the MENA press suggest that more than 80 per cent of businesses in the Middle East are family run or family owned, with an estimated US$1 trillion expected to be handed down to the next generation within the upcoming five to ten years, and with family businesses controlling over 90 per cent of commercial activity in the region. A 2007 Ernst & Young survey of businesses in the Middle East revealed that 73% of family businesses surveyed are run by second generation entrepreneurs followed by first and third generation owners at 48% and 20% respectively. Astonishingly, only 16 per cent of companies have admitted to having a well defined succession and a clear ownership transition plan. Succession planning, therefore, remains as one of the most significant challenges facing Middle Eastern family businesses today. Cayman STAR trusts can be particularly useful to settlors in the context of business succession. This form of trust, created under Cayman s unique Special Trusts Alternative Regime, provides a flexible and robust structure that may be established for the benefit of persons or purposes or both. The settlor may establish a trust with the dual purposes of owning/operating the family business and providing for future generations of his family. Through this structure, he may identify and prepare his successor(s) and ensure that the business remains intact after his death. Income may be ploughed back into the business or applied for the benefit of the family. STAR trusts have the advantage of perpetuity and confidentiality. There is no limit on the duration of a STAR trust. This is attractive to the settlor who wishes to create a dynasty style trust. He also may restrict the ability of the beneficiaries to challenge the trustee or obtain information concerning the trust. The only party with legal standing to enforce the trust or receive information about it is the enforcer nominated by the settlor in the trust deed. In addition to, or in conjunction with STAR, the private trust company or PTC increasingly is being used by settlors who wish to retain a greater degree of influence over the affairs of the trust. Cayman offers two types of PTC: a fully licensed and regulated form and a simpler, registered form. These enable the entrepreneurial settlor to incorporate his own trust company to act as trustee of one or more connected trusts. He, or other family members or trusted advisors, will then sit on the board and take an active role in the trustee s decision making process. This is perceived as allowing for more flexible, dynamic (and, arguably, less risk averse) trusteeship. Page 3 of 5
Asset Protection Cayman s robust, but not overly aggressive, creditor protection laws make it an attractive jurisdiction in which to establish an asset protection trust. The legal framework is provided by the Fraudulent Dispositions Law (as revised): this renders any transfer of property voidable by a creditor if it is made at an undervalue and with intent to defraud. A gift into trust will usually be a transaction for no consideration, and thus at an undervalue. Intent to defraud means an intention willfully to defeat an obligation owed to a creditor which existed on or before the date of the transfer and of which the transferor had notice. The burden of proof is placed squarely on the creditor seeking to set aside the transfer. There is an ultimate limitation period of six years from the date of the transfer into trust from which point any action to set it aside will be timed out. The legislation is deliberately conservative a six year limitation period rather than adopting the more adventurous approaches taken by some other jurisdictions. Use of Trusts by Companies Cayman trusts are popular choices in Islamic finance structures (e.g., sukuk). The Cayman Islands government has been proactive in amending legislation to characterise sukuk structures as alternative financial investments to facilitate the use of Cayman companies and trust structures in Islamic finance without having to comply with the regulatory requirements under the Mutual Funds Law and the Banks and Trust Companies Law. As previously mentioned, in the Middle East a significant number of companies are family owned. Often these companies employ expatriates at the management level and wish to reward talented employees and managers under share option or incentive plans. Companies operating in the Middle East, however, face legal restrictions, including maintaining a 51% local ownership requirement and restrictions on the ability to issue varying share classes. A Cayman STAR trust is a popular choice for structuring share incentive plans for local free zone companies and local non government owned companies. The trustee acquires a block of shares from the company and/or existing shareholders. The trustee then arranges transfers of shares forming that block between the trust and employees pursuant to the share plan and the trust deed. The arrangement limits corporate obligations to issue further shares to employees that could dilute the Page 4 of 5
existing shareholders. Further, use of a Cayman trust avoids the complexity and expense of having to comply with corporate requirements for issuing, transferring and repurchasing shares. Challenges The concept of a trust does have its place in the history of the Middle East. Wakfalal aulad, otherwise known as Wakf, is a religious endowment in Islamic law for religious or charitable purposes. The challenge now is to work with MENA clients to ensure that their estate planning, business goals and religious concerns are addressed through the establishment of an appropriate structure. It is a gradual process, but it is encouraging to see the number of Middle Eastern families that are recognising the value and flexibility that Cayman s trust regime has to offer. Dennis Ryan Associate +9714 428 2900 dennis.ryan@conyers.com David Pytches Associate +345 814 7390 david.pytches@conyersdill.com This article is not intended to be a substitute for legal advice or a legal opinion. It deals in broad terms only and is intended to merely provide a brief overview and give general information. About Conyers Dill & Pearman Conyers Dill & Pearman advises on the laws of Bermuda, British Virgin Islands, Cayman Islands, Cyprus and Mauritius. Conyers lawyers specialise in company and commercial law, commercial litigation and private client matters. Conyers structure, culture and expertise enable responsive, timely and thorough service. Conyers provides clients with the highest quality legal advice from strategic global locations including offices in the world s leading financial centres in Europe, Asia, the Middle East and South America. Founded in 1928, Conyers comprises 600 staff including more than 150 lawyers. Affiliated companies (Codan) provide a range of trust, corporate secretarial, accounting and management services. For more information please contact: Naomi Little +1 (441) 298 7828 naomi.little@conyersdill.com www.conyersdill.com Page 5 of 5